Citation Nr: 0518605
Decision Date: 07/08/05 Archive Date: 07/20/05
DOCKET NO. 03-14 414 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to assignment of a higher disability evaluation
for service-connected degenerative joint disease of the right
knee, currently rated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. W. Kreindler, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1998 to May
2002.
This matter comes to the Board of Veterans' Appeals (Board)
from a May 2002 rating decision of a Department of Veterans
Affairs (VA) Regional Office (RO). A notice of disagreement
was filed in November 2002, a statement of the case was
issued in May 2003, and a substantive appeal was received in
May 2003. In her May 2003 VA Form 9, the veteran requested a
Board hearing. However, she withdrew this request in June
2003.
Although the appeal also initially included the issues of
service connection for hypertension and for tension
headaches, service connection was established for these
disabilities by rating decision in January 2004.
Consequently, these issues are no longer in appellate status.
FINDING OF FACT
The veteran's service-connected right knee disability is
manifested by x-ray evidence of arthritis and pain which
results in additional functional loss which limits flexion to
no more than 30 degrees; there is evidence of no more than
slight instability, but no evidence of limitation of
extension.
CONCLUSIONS OF LAW
1. The criteria for entitlement to a disability rating in
excess of 10 percent based on limitation of motion associated
with the service-connected degenerative joint disease of the
right knee have not been met. 38 U.S.C.A. §§ 1155, 5100,
5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.59,
4.71a, Diagnostic Codes 5003, 5260, 5261 (2004).
2. The criteria for entitlement to a separate disability
rating of 10 percent (but no higher) for instability
associated with the service-connected degenerative joint
disease of the right knee have been met. 38 U.S.C.A. §§
1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§
4.59, 4.71a, Diagnostic Code 5257 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), which has been
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a). Under the VCAA, VA has a duty to notify the
veteran of any information and evidence needed to
substantiate and complete a claim, and of what part of that
evidence is to be provided by the claimant and what part VA
will attempt to obtain for the claimant. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).
The United States Court of Appeals for Veteran Claims
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C.A. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, a May 2002 rating
decision granted service connection and assigned a disability
rating. The veteran perfected her appeal in May 2003. In
August 2003, a VCAA letter was issued to the veteran
regarding what information and evidence is needed to
substantiate her claim for an increased disability rating, as
well as what information and evidence must be submitted by
the claimant, and what information and evidence will be
obtained by VA. The VCAA letter also implicitly informed the
appellant of the need to submit any evidence in her
possession that pertains to the claim.
The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless. Although the
notice provided to the veteran in August 2003 was not given
prior to the first AOJ adjudication of the claim, the notice
was provided prior to certification of the veteran's claim to
the Board. The contents of the notice fully complied with
the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). The claimant has been provided with every
opportunity to submit evidence and argument in support of her
claim, and to respond to VA notices. The appeal was then
subsequently reviewed by the RO as evidenced by the issuance
of a supplemental statement of the case in January 2004.
Under the particular circumstances of this case, the Board
finds that there has been no resulting prejudice to the
veteran. Mayfield v. Nicholson, No. 02-1077, U.S. Vet. App.
(April 14, 2005).
The VCAA also provides that VA has a duty to assist claimants
in obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the
veteran's service medical records are on file. There is no
indication of relevant, outstanding records which would
support the veteran's claim. 38 U.S.C.A. § 5103A(c);
38 C.F.R. § 3.159(c)(1)-(3). Additionally, the evidence of
record contains a pre-discharge compensation and pension (C &
P) examination performed in March 2002, and a VA examination
performed in June 2003. The examination reports obtained are
thorough and contain sufficient information to decide the
issue on appeal. See Massey v. Brown, 7 Vet. App. 204
(1994).
For all the foregoing reasons, the Board concludes that VA's
duties to the veteran have been fulfilled with respect to the
issue on appeal.
I. Factual Background
Service medical records reflect treatment for right knee
pain. In January 2001, she underwent arthroscopic surgery
for her right knee lateral release with an open medical
reefing/VMO advancement where a grade IV chondromalacia
patella was noted. She underwent rehabilitation, and
subsequently reported increasing difficulty with flexion,
squatting, and other physical activities. A September 2001
x-ray examination revealed evidence of tri-compartment
degenerative joint disease. The veteran underwent an
examination by the Medical Evaluation Board (MEB) in December
2001, and the diagnosis rendered was right knee patellar
malalignment with Grade IV chondromalacia patella. The MEB
recommended separation from service due to her right knee
disability. As such, the veteran separated from service in
May 2002.
In March 2002, the veteran underwent a C & P examination.
The veteran reported developing right knee pain in February
1999 which progressively got worse over the years. Post-
surgery, she reported pain as a 7 on a 10 point scale. She
reported that the pain occurred off and on, every day, with
prolonged sitting and standing, prolonged walking, squatting,
and running in cold weather. She reported treating with
heat, Motrin, and Tylenol. A physical examination of the
right knee revealed pain with McMurray's and tender
palpation. Flexion was 140 degrees bilaterally, and passive
range of motion. Flexion was 130 degrees in the right knee
with squatting. An x-ray examination was normal. The
examiner diagnosed residue, post-op right knee with
degenerative joint disease.
In June 2003, the veteran was afforded another VA
examination. The veteran, again, reported right knee pain
since February 1999, and subsequent surgery in January 2001.
At the time of the examination, she complained of pain in the
right knee, aggravated by prolonged standing, bending of the
knee, and running. She reported that every 3 or 4 months,
her knee slips out of place and it pops back after some time,
while stating that it is less frequent than prior to surgery.
The examiner noted that there were no particular episodes of
flare-ups. The veteran uses a brace which does not help her
much. On physical examination, the right knee was "a little
bit" swollen." There was a synovial thickening on the
infrapatellar fossa with tenderness. No quadriceps wasting.
The range of motion of the right knee was "a little bit
diminished," 120 out of 130. Further range of motion was
limited by some pain and stiffness. The McMurray sign was
negative, as was the Drawer test. The knee was stable.
There was no tenderness over the medial or lateral collateral
ligaments. An x-ray examination revealed minimal
degenerative changes of the knee and prominent soft tissue of
the right knee. The diagnosis was degenerative disease of
the right knee, synovitis, residuals of surgery for recurrent
dislocation of patella.
II. Laws and Regulations
In the May 2002 rating decision which gives rise to this
appeal, the RO granted service connection for right knee
disability and assigned a 10 percent rating effective May 28,
2002, under the criteria set forth in Diagnostic Code 5010.
The veteran contends that the severity of her service-
connected right knee disability warrants assignment of a
higher disability rating.
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the
instant case, the appeal arises from the original assignment
of a disability evaluation following an award of service
connection, the severity of the disability at issue is to be
considered during the entire period from the initial
assignment of the disability rating to the present time. See
Fenderson v. West, 12 Vet.App. 119 (1999).
In the present case, it should also be noted that when
evaluating disabilities of the musculoskeletal system, 38
C.F.R. § 4.40 allows for consideration of functional loss due
to pain and weakness causing additional disability beyond
that reflected on range of motion measurements. DeLuca v.
Brown, 8 Vet.App. 202 (1995). Further, 38 C.F.R. § 4.45
provides that consideration also be given to weakened
movement, excess fatigability and incoordination.
For purposes of this decision, the Board notes that normal
range of motion for the knee is flexion to 140 degrees and
extension to 0 degrees. 38 C.F.R. § 4.71, Plate II.
Diagnostic Codes 5260 and 5261 provide for rating based on
limitation of motion.
Evaluations for limitation of flexion of a knee are assigned
as follows: flexion limited to 45 degrees is 10 percent;
flexion limited to 30 degrees is 20 percent; and flexion
limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a,
Diagnostic Code 5260.
Evaluations for limitation of extension of the knee are
assigned as follows: extension limited to 10 degrees is 10
percent; extension limited to 15 degrees is 20 percent;
extension limited to 20 degrees is 30 percent; extension
limited to 30 degrees is 40 percent; and extension limited to
45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code
5261.
Under Diagnostic Code 5257, pertaining to "other impairment
of the knee," a 10 percent rating is warranted for slight
knee impairment (recurrent subluxation or lateral
instability). A 20 percent rating contemplates a moderate
degree of impairment, and a maximum 30 percent rating is
warranted for a severe degree of impairment to the knee.
Pursuant to Diagnostic Code 5003, arthritis established by x-
ray findings will be rated on the basis of limitation of
motion under the appropriate diagnostic code(s) for the
specific joint or joints involved. When, however, the
limitation of motion of the specific joint or joints involved
is noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion. Limitation of motion must be objectively confirmed
by findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. In the absence of limitation of
motion, x-ray evidence of involvement of 2 or more major
joints or two or more minor joint groups, with occasional
incapacitating exacerbations warrants a 20 percent
evaluation. X-ray evidence of involvement of 2 or more major
joints or 2 or more minor joints warrants a 10 percent
evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003.
III. Analysis
Upon a finding by the March 2002 examiner of degenerative
joint disease of the right knee, the RO assigned a 10 percent
disability rating under the provisions of 38 C.F.R. § 4.71a,
Diagnostic Code 5010. As noted, degenerative arthritis
established by X-ray evidence will be rated on the basis of
limitation of motion of the specific joint or joints
involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The June
2003 VA examination showed degenerative arthritis by X-ray
study. Therefore, a 10 percent rating is warranted pursuant
to Diagnostic Code 5003 even though the limitation of flexion
is otherwise noncompensable under Code 5260. See Diagnostic
Code 5003.
As previously discussed, the applicable Diagnostic Codes for
rating limitation of motion are 5260 and 5261. At the March
2002 VA examination, range of motion in the right knee was
normal, and limited by 10 degrees when squatting. At the
June 2003 VA examination, range of motion was reported as 120
out of 130, and further range of motion was limited by some
pain and stiffness. Looking to the possibility of a higher
rating under diagnostic criteria for limitation of motion,
even when additional functional loss due to pain, weakness,
fatigue, and incoordination is considered, the clear
preponderance of the evidence is against a finding that there
is resulting limitation of flexion to 30 degrees or less so
as to warrant a rating in excess of 10 percent under Code
5260, or limitation of extension to 15 degrees of more so as
to warrant a rating in excess of 10 percent under Code 5261.
The Board has given consideration to the possibility of
assigning a separate evaluation for the veteran's right knee
disability under Diagnostic Codes 5003 and 5257, which is
allowed so long as the evaluation of knee dysfunction under
both codes does not amount to prohibited pyramiding under 38
C.F.R.§ 4.14. See VA O.G.C. Prec. Op. No. 23-97 (July 1,
1997), 62 Fed. Reg. 63,604 (1997) (a veteran who has
arthritis and instability of the knee may be rated separately
under Diagnostic Codes 5003 and 5257, provided that any
separate rating must be based upon additional disability); VA
O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg.
56,704 (1998) (if a veteran has a disability rating under
Diagnostic Code 5257 for instability of the knee, and there
is also X-ray evidence of arthritis, a separate rating for
arthritis could also be based on painful motion under 38
C.F.R. § 4.59). See also Esteban, 6 Vet. App. at 261 (1994)
(separate disabilities arising from a single disease entity
are to be rated separately); but see 38 C.F.R. § 4.14 (the
evaluation of the same disability under various diagnoses is
to be avoided).
The evidence regarding instability of the knee does not
clearly support assignment of a separate rating. Although at
the March 2002 VA examination, the veteran complained of pain
with McMurray's, at the June 2003 VA examination, objective
examination noted that the right knee was stable and the
McMurray test and drawer sign was negative. Nevertheless,
the veteran's complaints included reports of dislocation at
least every 3 to 4 months. There is also some evidence of a
brace. Therefore, resolving all reasonable doubt in the
veteran's favor, the Board finds that a separate 10 percent
disability rating under Diagnostic Code 5257 for slight
instability is warranted. Moreover, in view of the veteran's
complaints over the period covered by the appeal, the Board
finds that the separate 10 percent rating is warranted from
May 29, 2002. Fenderson.
The Board notes, however, that there does not appear to be
persuasive evidence of moderate recurrent subluxation or
lateral instability to warrant assignment of a 20 percent
rating under Diagnostic Code 5257 for the right knee. The
Board has also considered alternative diagnostic codes that
potentially relate to impairment of the knee. The Board
finds, however, that a rating in excess of 10 percent is not
warranted under any alternative provision.
The assignment of an extra-schedular rating was also
considered in this case under 38 C.F.R. § 3.321(b)(1);
however, the record contains no objective evidence that the
veteran's right knee disability has resulted in marked
interference with earning capacity or employment beyond that
interference contemplated by the assigned evaluation, or has
necessitated frequent periods of hospitalization.
Accordingly, the Board finds that the impairment resulting
from the veteran's knee disability is appropriately
compensated by the currently assigned schedular ratings and
38 C.F.R. § 3.321 is inapplicable.
ORDER
Entitlement to a disability rating in excess of 10 percent
for limitation of motion associated with the service-
connected degenerative joint disease of the right knee is not
warranted. To this extent, the appeal is denied.
Entitlement to a separate 10 percent disability rating for
instability associated with the service-connected
degenerative joint disease of the right knee is warranted,
effective from May 28, 2002. To this extent, the appeal is
granted.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs